What Makes up Your Digital Estate?

Ch IV.3. Security Concerns Surrounding Digital Estates

Proper digital estate planning must account for the digital asset transferor’s security concerns. Wills are poor legal devices for managing digital asset information because traditional wills become public, thus exposing the location and access information of the digital assets to potential threats. Including passwords and other confidential information in a will is likely to endanger the security of one’s digital assets and could undermine the entire estate plan. Cybercrime represents a real and serious threat to any digital estate transfer. Identity theft is the fastest growing crime in the world, impacting over 27,000 people worldwide each day to the tune of an estimated $56 billion each year. In 2010, the IRS allocated over $12 million to over 5,000 stolen identities of deceased U.S. citizens, in connection with scams perpetrated via the decedent’s “Electronic Survivorship and Non-Transferability” clause of its terms and conditions, will permanently delete contents of the user’s account upon the user’s death.

Google’s policy differs slightly, stating that in some “rare cases” it may provide a deceased user’s content to an authorized representative. Hotmail/Outlook states that it will provide a copy of email messages, contact lists, attachments, and other content after proper authentication of ownership. Social media site terms and conditions may also vary. Ultimately, digital assets held or stored by online service providers will be subject to the terms of the service contract, binding the account holder and the service provider.33 Disputes pertaining to the digital asset ownership in reference to online accounts are settled by courts construing the terms and conditions of the contract of the third-party online provider through the application of state law.

Funerals and Instagram: A look at the funeral hashtags

Ch IV.4. Individual Goals Regarding Digital Assets

After providing for the location, accessibility, and ownership of a digital asset, one must then determine the individual’s estate plan wishes and legacy goals. People generally do not have specific digital estate plans in place, often attributable to the fact they are unaware of the importance of developing a specialized digital estate plan.39 Many people mistakenly believe that the only benefit of estate planning is the disbursement of assets upon death according to one’s wishes.

However, security issues, protecting a legacy (including a personal, family, or commercial image), and fulfillment of an overall estate plan are equally important. Uncertainty as to the dissemination and management of assets often arises in the absence of an estate plan, potentially creating significant strife for family members. It is therefore imperative for estate planning attorneys to consider digital assets in addition to physical or traditional assets to ensure both the fulfillment of their client’s wishes and the safe and efficient transfer of digital assets to the next generation.

Identity Theft Safeguard

Ch IV.2. Ownership of Digital Assets

Second, while it is crucial to identify the digital asset’s location and accessibility, digital asset ownership rights, copyrights, and accessibility, digital asset ownership rights, copyrights, and contractual rights are often less clear than traditional tangible property because the digital assets are often stored, created, and managed by a third party. Ownership rights of digital assets stored with third parties are not always as hereditary in character because “the terms of the contract between online service providers and account holders . . . govern the ownership and inheritability of ‘digital assets.’”24 To determine the ownership rights of a digital asset, one must examine the user’s property rights relative to those of the third-party online service provider who is storing managing, and protecting the digital asset. In the majority of instances, the third party provider will own the property rights to the account.

For example, in the case of Facebook, an account is the property of the company, and not the individual end user.26 However, at the same time, personal information stored on the account, such as pictures, social media postings, status updates, and other similarly situated data, can be protected by copyright law and constitute a decedent’s intellectual property. Problems arise when a beneficiary wishes to obtain access to a digital asset, but the asset is located in an account where the beneficiary does not have immediate access. If the third-party provider closes the decedent’s account and deletes any data stored on the account, irreplaceable digital property—which may contain pecuniary and sentimental value—could be lost forever. Furthermore, it is unclear whether the third party has any duties to preserve these digital assets for the benefit of the beneficiaries. Depending on the type of digital asset and service provider storing the digital assets, ownership rights and the legal ability to access digital assets may vary significantly.

For instance, a comparison between three similar email service providers shows that service provider contracts may differ significantly in respect to how they treat a decedent’s digital content. Yahoo!, pursuant to the “No Right of Survivorship and Non-Transferability” clause of its terms and conditions, will permanently delete contents of the user’s account upon the user’s death. Google’s policy differs slightly, stating that in some “rare cases” it may provide a deceased user’s content to an authorized representative. Hotmail/Outlook states that it will provide a copy of email messages, contact lists, attachments, and other content after proper authentication of ownership. Social media site terms and conditions may also vary. Ultimately, digital assets held or stored by online service providers will be subject to the terms of the service contract, binding the account holder and the service provider. Disputes pertaining to the digital asset ownership in reference to online accounts are settled by courts construing the terms and conditions of the contract of the third-party online provider through the application of state law.

Texts from the dead: Post-mortem digital communication has arrived

Ch IV.1. Location of Digital Assets

In order to properly plan for the disposition of digital assets, one must identify not only who owns the digital asset, but also where it is located and how to access it. An average Internet user has approximately 26 different and unique passwords, creating a logistical and tracking nightmare for estate planners.

While cloud computing and online storage capabilities enable better information storage, access, and sharing, they also present greater challenges for digital estate planners attempting to pinpoint a digital asset’s exact location. Digital assets stored in the cloud are often password protected and categorized by individual accounts (i.e., a user name or account number), which allows individuals to sort and safely access their digital assets. Furthermore, digital assets can be physically stored on multiple servers with a variety of different companies, individuals, and governments.23 As such, the digital assets could be found in multiple different legal jurisdictions, states, or even countries, creating the potential for conflict of law concerns regarding the ownership, transferability, and accessibility of the digital assets.